Citation Nr: 20045095 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 20-00 531 DATE: July 7, 2020 ORDER Entitlement to payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at Kaweah Delta Medical Center [hereinafter “KDMC”] on June 26, 2017, is denied. FINDINGS OF FACT 1. On the morning of June 26, 2017, the Veteran visited the emergency department at KDMC in Visalia, California. This is a private facility. The Veteran was a walk-in arrival. He presented with continuing right wrist swelling and pain, with an onset of at least five days earlier. After X-rays were taken, the final assessment was arthralgia of the right wrist. Although this is a nonservice-connected disability, the Veteran has a permanent and total (P&T) rating due to his adjudicated service-connected disabilities. 2. It is undisputed that a “medical emergency” existed for the Veteran under the prudent layperson standard on the morning of June 26, 2017. 3. Under the prudent layperson standard, the totality of the evidence reveals that during the Veteran’s private hospitalization at KDMC on the morning of June 26, 2017, and for several days beforehand as well, VA facilities were feasibly available and an attempt to use them beforehand would have been considered reasonable by a prudent layperson. CONCLUSION OF LAW The criteria are not met for payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at KDMC on June 26, 2017. 38 U.S.C. §§ 1728, 5107 (2012); 38 C.F.R. §§ 17.53, 17.120, 17.130, 17.1002(c) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service in the U.S. Army from November 1966 to November 1969 and from February 1970 to November 1978. His awards and decorations include the Combat Infantryman Badge (CIB), Purple Heart Medal, and Bronze Star Medical with “V” device, among others. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2017 and January 2019 decisions by the Department of Veterans Affairs (VA) Northwest Regional Payment Center in Vancouver, Washington. This appeal was processed using both a paper-based claims file and an electronic Veterans Benefits Management System (VBMS). I. VA’s Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2019). In Beverly v. Nicholson, 19 Vet. App. 394, 403-04 (2005), the U.S. Court of Appeals for Veterans Claims (Court) implied the VCAA is applicable to a Chapter 17 claim, but then held that the failure to comply with the VCAA notice requirements in that case constituted non-prejudicial error. To the extent the VCAA is applicable to the instant medical expense reimbursement claim, the Board has considered its provisions. In any event, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. “Unauthorized” Medical Expense Reimbursement On June 22, 2017, the Veteran visited the emergency room at Sierra View Medical Center in Porterville, California. This is a private facility. The Veteran was treated for pain and swelling to the right wrist. X-rays of the right wrist revealed minimal arthritis of the radiocarpal joint. The possibility of “septic arthritis” of the right wrist was discussed by private medical personnel. He was given IV antibiotics. The Veteran left the private hospital against medical advice. Private hospital personnel instructed him to immediately visit the emergency department at the VA Medical Center (VAMC) in Fresno, California, for probable surgical care of his “infected wrist.” A record from Sierra View dated June 22, 2017, indicates that the Veteran stated that he was “going to go to Fresno to the VA hospital.” In any event, a claim for payment or reimbursement of the costs associated with this private hospitalization at Sierra View Medical Center on June 22, 2017, is not on appeal before the Board at this time. On June 23, 2017 (the next day), the Veteran was a walk-in arrival at the Tulare VA Community Based Outpatient Clinic (CBOC) in Tulare, California. This is the Veteran’s primary care provider. He continued to report swelling and pain in his right wrist / hand. It was noted he was on antibiotics. The assessment for his right wrist was “likely cellulitis.” He again left a medical facility (this time the Tulare VA CBOC) against medical advice. He was also advised by a VA doctor at the Tulare VA CBOC of the immediate need for him to visit an emergency room to be evaluated by an orthopedic surgeon for possible surgical debridement. On Monday, June 26, 2017 (three days later), at 7:37am, the Veteran visited the emergency room at KDMC in Visalia, California. This is a private facility. The Veteran was a walk-in arrival. He continued to report right hand swelling and pain. He was on antibiotics. But the severity was “mild.” His condition had “gradually improved” over the past week. After X-rays were taken, the assessment was arthralgia of the right wrist. After additional antibiotics were administered, he was discharged home from the private hospital close to three hours later, at 10:32am. He was instructed to follow-up with his VA primary care doctor. The ER personnel at KDMC on the morning of June 26, 2017, assigned an Emergency Severity Index (ESI) level of four (4) for the Veteran. A level four (4) patient is considered a stable patient who is deemed “less urgent.” The Veteran is not service connected for his right wrist. Thus, there is no dispute that his private hospitalization at KDMC on June 26, 2017 was for a nonservice-connected disorder. The Veteran did not receive written authorization from VA prior to this private hospitalization. He has partial health insurance through Medicare Part A. But he has an outstanding balance with KDMC for the remaining costs of his private hospitalization on June 26, 2017. Specifically, he has submitted outstanding invoices from KDMC for the remaining costs of this private hospitalization in the amounts of $268.00 and $1,758.72, although there may be additional costs not documented in the record. See also July 2017 claim for reimbursement (on a UB-04 CMS-1450); May 2018 claim for reimbursement (on an OMB Form 1500). In short, the Veteran has requested payment or reimbursement for his unauthorized medical expenses associated with his private hospitalization for his right wrist at KDMC on June 26, 2017. He maintains it was a “medical emergency” and VA facilities were not “feasibly available” that morning. He adds that on the day in question, June 26, 2017, he first visited the Tulare VA CBOC where his VA primary care provider instructed him to seek emergency treatment for his right wrist at KDMC, a private facility. Thus, he followed the oral instructions of his VA doctor. He adds that the nearest VAMC in Fresno, California, was 76 miles from his home, which was too far a distance to travel on the morning of June 26, 2017. See May 2018 Notice of Disagreement (NOD); November 2019 VA Form 9. In the August 2017 and January 2019 VA administrative decisions on appeal and in the October 2019 Statement of the Case (SOC), the Agency of Original Jurisdiction (AOJ) denied the Veteran’s unauthorized medical expense claim. The AOJ appeared to agree that the Veteran’s private hospitalization on the morning of June 26, 2017 at KDMC was rendered in a “medical emergency” of such a nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. See 38 C.F.R. § 17.120(b). Thus, the issue of whether a “medical emergency” existed for the Veteran on the morning of June 26, 2017 is undisputed by the Board and requires no further discussion. However, the AOJ denied the claim on one basis – the AOJ determined that VA facilities were feasibly available to the Veteran on the morning of June 26, 2017. See 38 C.F.R. §§ 17.53, 17.120(c), 17.1002(c). The Veteran could have visited the nearby VAMC in Fresno, California, which is open 24 hours a day, 7 days per week. But instead, the Veteran chose the private hospital (KDMC) in preference to the available VA facility. In short, the AOJ concluded the Veteran did not meet the criteria for payment or reimbursement of non-VA medical treatment. The Veteran appealed this denial to the Board. Initially, under 38 U.S.C. § 1703, when VA facilities or other government facilities are not capable of furnishing economical hospital care or medical services because of geographic inaccessibility or are not capable of furnishing care or services required, VA may authorize or contract with non-VA facilities for care. 38 U.S.C. § 1703(a) (2012); 38 C.F.R. § 17.52(a) (2019). However, in this case, VA did not authorize or contract for the private hospital (KDMC) to provide the Veteran with no cost private care on the morning of June 26, 2017. In this regard, although a VA primary care E&M note dated on June 23, 2017 confirms that the Veteran’s VA primary care doctor instructed the Veteran to visit an emergency room immediately, the Court has held that the oral advice of a VA clinician to a claimant to seek treatment at a private hospital is not the type of specific authorization contemplated by § 17.54(a). Smith v. Derwinski, 2 Vet. App. 378, 379 (1992). Moreover, in the actual VA treatment notes dated June 23, 2017, the VA primary care doctor above noted that the Veteran had previously been advised to seek treatment at a VA facility - the VAMC in Fresno, California, as opposed to a private facility. The private facility, KDMC, was not mentioned in these VA treatment notes. Thus, the issue of prior authorization for a private facility, as delineated by VA statute and regulation, is not applicable here. Regardless, when a veteran receives treatment at a private facility without prior authorization, such as the case here, there are two statutes that allow for claimants to be paid or reimbursed for the medical expenses incurred for that treatment, specifically 38 U.S.C. § 1728 and 38 U.S.C. § 1725. Application of either statute is generally dependent on whether the Veteran has an adjudicated service-connected disability. In the present case, in adjudicating the “unauthorized” medical expenses claim, the Board concludes that 38 U.S.C. § 1728 for veterans with service-connected disability is for consideration. The Board acknowledges that the Veteran’s right wrist disorder for which he was treated on the morning of June 26, 2017, is not a service-connected disability. See 38 C.F.R. § 17.120(a)(1). That notwithstanding, the Veteran has a permanent and total (P&T) rating due to multiple, adjudicated service-connected disabilities – to include PTSD, tinnitus, and hearing loss. See 38 C.F.R. § 17.120(a)(3). Therefore, the Veteran meets this initial threshold criteria of 38 U.S.C. § 1728(a), in that he has a P&T service-connected disability beginning August 27, 2010. It follows that 38 U.S.C. § 1728 pertaining to service-connected disabilities applies in the present case. Effective October 10, 2008, the provisions of 38 U.S.C. § 1725 and § 1728 were amended. See Veterans’ Mental Health and Other Care Improvements Act of 2008, Pub. L. No. 110-387, § 402, 122 Stat. 4110 (2008). The changes are liberalizing in that they make reimbursement for medical expenses mandatory instead of discretionary, as well as expand the definition of “emergency treatment” beyond the point of stabilization. In addition, the changes apply the more liberal prudent layperson standard for determining whether an actual medical emergency existed under either 38 U.S.C. § 1725 and § 1728. Specifically, the amended statutes expand the meaning of “emergency treatment” under section 1725(f)(1) and section 1728(c) by defining emergency treatment as medical care or services furnished, in the judgment of VA: (A) when Department or other Federal facilities are not feasibly available and an attempt to use them beforehand would not be reasonable; (B) when such care or services are rendered in a medical emergency of such nature that a prudent layperson reasonably expects that delay in seeking immediate medical attention would be hazardous to life or health; and (C) until such time (i) as the veteran can be transferred safely to a Department facility or other Federal facility and such facility is capable of accepting such transfer; or (ii) as a Department facility or other Federal facility accepts such transfer if at the time the veteran could have been transferred safely to a Department facility or other Federal facility, no Department facility or other Federal facility agreed to accept such transfer; and the non-Department facility in which such medical care or services was furnished made and documented reasonable attempts to transfer the veteran to a Department facility or other Federal facility. See 38 U.S.C. §§ 1725, 1728 (2012). In addition, effective January 20, 2012, VA regulations implementing 38 U.S.C. § 1725 and § 1728 were amended to conform to the statutory changes. See 76 Fed. Reg. 79,067-79,072 (December 21, 2011). The amendments affected the following Title 38 regulations: 38 C.F.R. §§ 17.120, 17.121, 17.1001, 17.1002, 17.1005, 17.1006, and 17.1008. All of the above elements must be satisfied for a claimant to qualify for payment or reimbursement. Zimick v. West, 11 Vet. App. 45, 49 (1998); Malone v. Gober, 10 Vet. App. 539, 544 (1997). That is, these criteria under 38 U.S.C. § 1728 and 38 C.F.R. §§ 17.120 -17.121 are conjunctive, not disjunctive; thus, all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) (noting that use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (providing that only one disjunctive “or” requirement must be met in order for an increased rating to be assigned). Both medical and lay evidence may be considered in a prudent layperson evaluation for determining what constitutes a medical emergency. That is, VA should weigh the totality of the circumstances to determine whether a prudent layperson would consider the situation emergent. Swinney v. Shinseki, 23 Vet. App. 257, 264-266 (2009) (emphasis added). In determining the claim at issue, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As discussed above, the totality of the evidence (both medical and lay evidence of record) establishes that a “medical emergency” existed for the Veteran under the prudent layperson standard on the morning of June 26, 2017. See 38 C.F.R. § 17.120(b). In addition, VA’s authorization to make payment beyond the point of stabilization is not at issue here because the Veteran required a brief emergency room visit at KDMC for a little under three hours on the morning of June 26, 2017. See 38 U.S.C. §§ 1725(f)(1)(C), 1728(c); 38 C.F.R. §§ 17.53, 17.121(a)-(b). Both of these findings are undisputed by the Board. It follows that the sole remaining question in the present case is whether a VA or other Federal facility/provider was feasibly available to the Veteran on the morning of June 26, 2017, and an attempt to use them beforehand would have been considered reasonable by a prudent layperson. See 38 U.S.C. §§ 1725(f)(1)(A), 1728(c); 38 C.F.R. §§ 17.53, 17.120(c), 17.1002(c). The Veteran would prevail if it is established that a VA facility was not feasibly available to him on the morning in question, such that it was necessary for him to seek private treatment at KDMC instead. Upon review of the evidence, the Board finds that the requirements for payment or reimbursement for unauthorized medical expenses incurred during a non-VA hospitalization at KDMC on the morning of June 26, 2017, under the amended version of 38 U.S.C. § 1728, are NOT met. The claim is therefore denied. In this regard, the totality of the circumstances demonstrates that VA facilities were feasibly available to the Veteran on the morning of June 26, 2017, under the amended versions of 38 U.S.C. §§ 1725(f)(1)(A) and 1728(c). The Veteran could have driven or been driven by ambulance to the VAMC in Fresno, California, which is a reasonable distance from the Veteran’s home (1 hour, 16 minutes), given the (ESI) level of four (4) or “less urgent” assigned to the Veteran by private hospital personnel at KDMC on the morning in question. In fact, the Veteran should have attempted to visit the VAMC in Fresno three to four days earlier from June 22nd – 23rd of 2017, when instructed both by private medical personnel and by his VA primary care physician at the Tulare VA CBOC. In addition, the VAMC in Fresno was fully equipped to treat the Veteran for his right wrist disorder anytime from June 23rd – 26th of 2017. This VAMC could have performed the necessary radiographic procedures and antibiotic treatment for the Veteran’s right wrist disorder, free of charge. But instead, the Veteran chose to procure private treatment in preference to the available VA facilities. With regard to feasible availability, the admission of any patient to a private or public hospital at VA expense will only be authorized if a VA or other federal facility to which the patient would otherwise be eligible for admission is not feasibly available. 38 C.F.R. § 17.53 (2019). A VA facility may be considered as not feasibly available when the urgency of the medical condition, the relative distance of the travel involved, or the nature of the treatment required makes it necessary or economically advisable to use public or private facilities. When non-VA care is authorized in such circumstances, the authorization will be continued after admission only for the period of time required to stabilize or improve the patient’s condition to the extent that further care is no longer required to satisfy the purpose for which it was initiated. Id. With regard to feasible availability, payment or reimbursement of the expenses of emergency treatment, not previously authorized, can be made when VA or other Federal facilities that VA has an agreement with to furnish health care services for veterans were not feasibly available, and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused. 38 C.F.R. § 17.120(c). With regard to feasible availability, under the regulation pertaining to emergency treatment for nonservice-connected disabilities, payment or reimbursement of the expenses of emergency treatment, not previously authorized, can be made when VA or other Federal facility/provider that VA has an agreement with to furnish health care services for Veterans was not feasibly available and an attempt to use them beforehand would not have been considered reasonable by a prudent layperson. (As an example, these conditions would be met by evidence establishing that a Veteran was brought to a hospital in an ambulance and the ambulance personnel determined the nearest available appropriate level of care was at a non–VA medical center.) 38 C.F.R. § 17.1002(c). No reimbursement or payment of services not previously authorized will be made when such treatment was procured through private sources in preference to available Government facilities. 38 C.F.R. § 17.130. The term VA medical facility of jurisdiction means the nearest VA medical facility to where the emergency service was provided. 38 C.F.R. § 17.1001(e). The existence of a VA facility does not in and of itself mean that the VA facility was feasibly available. Cotton v. Brown, 7 Vet. App. 325, 327 (1995). The fact that a VA medical center was located in the same city as the private facility does not provide an adequate basis for the Board’s findings that a VA facility was “available”; rather, the determination of whether a VA facility was “feasibly available” must be made after consideration of such factors as the urgent nature of the veteran’s medical condition and the length of any delay that would have been required to obtain treatment from a VA facility. Id. at 327-28. Respecting the relative distance of the travel involved, the Board may take judicial notice of facts, as compared to evidence, which are not subject to interpretation. See Yeoman v. West, 140 F.3d 1443 (Fed. Cir. 1998); Dedicatoria v. Brown, 8 Vet. App. 441 (1995). As to the geographical distance, applying Google Maps, the distance from the Veteran’s home to the private facility (KDMC), is a 39-minute drive (29.5 miles). This is a reasonable distance to travel from the Veteran’s home. Applying Google Maps, the nearest 24-hour VAMC emergency department from the Veteran’s home on June 2017 was the VAMC in Fresno, California. This VAMC is a 1-hour, 16-minute drive (75.3 miles) from the Veteran’s home. Thus, the factor of geographical distance would appear to weigh in favor of the Veteran. However, the Board also notes that three to four days earlier, on June 22nd and June 23rd of 2017, the Veteran should have attempted to visit the VAMC in Fresno, when instructed to do so by a private physician at Sierra View Medical Center and by his VA primary care physician at the Tulare VA CBOC. Applying Google Maps on June 23, 2017, the distance from the Tulare VA CBOC where the Veteran sought treatment to the VAMC emergency department in Fresno, California is only 37 minutes (25 miles). On June 23, 2017, he could have driven himself to this VAMC or have been transferred by an ambulance if he preferred. He could have done so for the VAMC in question, instead of choosing the private facility in preference to the VA facility several days later. See 38 C.F.R. § 17.130. No reimbursement or payment of services not previously authorized will be made in such circumstances. As to the urgency of the Veteran’s condition (see 38 C.F.R. § 17.53), on the morning of June 26, 2017, when considering feasible availability, the Board acknowledges that in its analysis above the Veteran’s medical condition for his right wrist was a “medical emergency,” in light of the serious private and VA clinical assessments several days earlier. But notably, the ER personnel at KDMC on the morning of June 26, 2017, assigned an Emergency Severity Index (ESI) level of four (4) for the Veteran. A level four (4) patient is considered a stable patient who is deemed “less urgent.” Moreover, the Veteran did not require an ambulance to visit KDMC on the morning of June 26, 2017. It is therefore not the case that ambulance personnel chose the private hospital for him, which is factor that weighs against the Veteran. See 38 C.F.R. § 17.1002(c). In fact, it appears he was able to drive himself to the private facility (KDMC) that morning - a 39-minute drive (29.5 miles). Finally, with regard to urgency, hospital personnel at KDMC on the morning of June 26, 2017 assessed that the severity of the Veteran’s right wrist condition was “mild.” He was “in no acute distress.” The swelling was “minimal.” It was noted his condition had “gradually improved” over the past week. After his earlier VA CBOC treatment on June 23, 2017, the Veteran was able to wait three full days before seeking treatment for his right wrist on June 26, 2017. Thus, the urgency factor (see 38 C.F.R. § 17.53) weighs against the Veteran. As to the nature of the treatment (see 38 C.F.R. § 17.53), this is not a factor that weighs in the Veteran’s favor here. The VAMC in Fresno would not have refused treatment for his right wrist injury anytime between June 22nd – 26th of 2017. In fact, on June 22, 2017, private hospital personnel at Sierra View Medical Center instructed the Veteran to immediately visit the emergency department at the VAMC in Fresno, California, for probable surgical care of his “infected wrist.” The Veteran has never contended that this VA facility could not have treated his right wrist condition. The VAMCs are open 24 hours a day and on weekends and are fully equipped to handle the medical condition the Veteran had. When viewing the language of 38 C.F.R. § 17.120(c), an attempt to use the VAMC in Fresno beforehand for his right wrist anytime between June 22nd – 26th of 2017 would have been reasonable, sound, wise, or practical. In fact, both private and VA clinical personnel advised him to do so. Thus, the nature of the treatment itself is not at issue. See 38 C.F.R. § 17.53, 17.120(c). With regard to the feasible availability of a VA facility, Veterans Health Administration (VHA) nurses provided negative clinical opinions dated in August 2017 and November 2019, both finding that VA facilities were feasibly available to the Veteran on the morning of June 26, 2017. The VHA nurses emphasized that the onset of the Veteran’s symptomatology was five days prior, and that he left private and VA treatment on June 22nd and June 23rd against medical advice. He refused previous care recommendations for IV antibiotics. After discussing the clinical evidence of record, both VHA clinicians concluded a VA facility was feasibly available to the Veteran on the morning of June 26, 2017. As such, these VHA nurse opinions provide probative evidence against the claim. The Board now turns to lay evidence submitted by the Veteran pertaining to the issue of the feasible availability of a VA facility on the morning in question – June 26, 2017. The Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, account for the evidence that it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). The Veteran’s credibility affects the weight to be given to his or her testimony and lay statements, and it is the Board’s responsibility to determine the appropriate weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, the demeanor of the witness, the facial plausibility of the testimony, the internal consistency of the testimony, impairment in memory, or, to a certain extent, bad character, among other factors. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Personal interest may affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). With regard to lay evidence, the Veteran maintains that VA facilities were not “feasibly available” to him on the morning of June 26, 2017. He states that on the day in question, June 26, 2017, he first visited the Tulare VA CBOC where his VA primary care provider instructed him to seek emergency treatment for his right wrist at KDMC, a private facility. Thus, he followed the oral instructions of his VA provider. He adds that the nearest VAMC in Fresno, California, was 76 miles from his home, which was too far a distance to travel on the morning of June 26, 2017. See May 2018 NOD; November 2019 VA Form 9. The Veteran as a layperson is competent to report his symptoms that morning, to report the distance to the nearest VAMC, and to report a VA physician’s alleged instructions to him, as these are observable circumstances. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). See also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). But once lay evidence is determined to be competent, the Board must determine whether such lay evidence is also credible. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). The Veteran’s lay assertions are not credible here due to inconsistent and conflicting clinical evidence in the claims file. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (the credibility and probative weight to be attached to evidence is within the province of the VA adjudicators). In this regard, contemporaneous medical evidence may have greater probative value than history as reported by the Veteran at a later date. Curry v. Brown, 7 Vet. App. 59, 68 (1994). That is, there is no clinical evidence establishing that the Veteran was seen earlier on the morning of June 26, 2017 at the Tulare VA CBOC. Rather, as discussed above, the Veteran was treated 3-4 days earlier at both private and VA facilities. Private emergency room records from Sierra View Medical Center dated on June 22, 2017 confirm that he was seen on that day at that private facility. Private hospital personnel at Sierra View instructed the Veteran to immediately visit the emergency department at the VAMC in Fresno, California, for probable surgical care of his “infected wrist.” Moreover, the very next day, a VA primary care E&M note from the Tulare VA CBOC dated on June 23, 2017 confirms that the Veteran’s VA primary care doctor instructed the Veteran to visit an emergency room immediately. But this was three days before June 26, 2017. There was no specific written notation of a VA provider instructing the Veteran to go to KDMC. In fact, the VAMC in Fresno was the only medical facility that was referenced by his VA provider in the June 23, 2017 VA treatment note. On both June 22nd and 23rd of 2017, the Veteran did not seek further emergency treatment and left both facilities against medical advice. Therefore, both private and VA clinical treatment records dated on June 22nd and 23rd of 2017 are inconsistent with the Veteran’s lay assertions. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (stating that a witness’s credibility may be impeached by a showing of interest, bias, or inconsistent statements). If either private or VA medical personnel had in fact advised the Veteran to seek private ER treatment at KDMC, this would have been documented in the private or VA treatment records in question, as the purpose of these records is to document in detail the Veteran’s medical complaints and treatment plan. See AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). On the question of whether a VA facility was feasibly available to the Veteran, the Board finds that the private and VA treatment records of record are more probative than the Veteran’s lay assertions, and thus outweigh his lay statements. In this regard, the Board can discount lay evidence in its role as factfinder if it weighs the evidence, finds the clinical evidence more probative, and provides an explanation with supporting reasons or bases. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). The Board has done so in the present case. Accordingly, the Board finds that the preponderance of the evidence is against payment or reimbursement of unauthorized medical expenses incurred during a non-VA hospitalization at KDMC on the morning of June 26, 2017. 38 U.S.C. §§ 1728, 5107 (2012). The claim is denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. Rubin, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.